Citation Nr: 0805774
Decision Date: 02/20/08 Archive Date: 03/03/08
DOCKET NO. 06-05 471 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for service connection for essential blepharospasms,
to include whether service connection can be granted.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Dan Brook, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
July 1962 to December 1966. This matter comes before the
Board of Veterans' Appeals (Board) on appeal from a May 2005
rating decision of the Oakland, California Regional Office
(RO) of the Department of Veterans Affairs (VA).
FINDINGS OF FACT
1. A March 2003 rating decision denied service connection
for essential blepharospasms; the veteran did not appeal this
decision to the Board and it became final.
2. Evidence received since the March 2003 decision includes
medical opinions indicating that the veteran's blepharospasms
are related to stress and a February 2007 decision granting
service connection for Post Traumatic Stress Disorder (PTSD);
the evidence relates to an unestablished fact necessary to
substantiate the claim and raises a reasonable possibility of
substantiating the claim.
3. The veteran's blepharospasms are reasonably shown to be
related to his service-connected PTSD.
CONCLUSIONS OF LAW
1. The evidence received since the March 2003 decision is
new and material and the claim for service connection for
blepharospasms may be reopened.
38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 2002); 38 C.F.R.
§ 3.156(a), 3.303, 3.304, 3.310 (2007).
2. The veteran's blepharospasms are a result of, and/or
aggravated by, his service-connected PTSD. 38 U.S.C.A. §§
1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304,
3.310 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case,
the Board is granting in full the benefit sought on appeal.
Accordingly, assuming, without deciding, that any error was
committed with respect to either the duty to notify or the
duty to assist, such error was harmless and will not be
further discussed.
II. Factual Background
Service medical records do not reveal any treatment or
complaints for eye problems. On November 1966 separation
examination the eyes were found to be normal and the veteran
was noted to have 20/20 vision in both eyes.
At an August 1999 eye care visit the veteran complained of
constant redness in both eyes and no relief. The diagnostic
impression was chronic blepharitis.
An August 1999 VA ophthalmology progress note shows that the
veteran was complaining of bilateral conjunctival redness,
worse upon rising, after shower or rubbing eyes. The
diagnostic impression was chronic blepharitis bilaterally.
In a July 2001 statement, the veteran indicated that his eyes
would get red when taking a shower or swimming and that this
condition started when he was in Vietnam. During Vietnam he
did not seek medical attention but when he was discharged his
mother told him to get his eyes checked. The veteran went to
an eye doctor in 1967 but did not remember the name of the
doctor. The eye doctor told him that he had "some sort of
jungle fungus," but the veteran did not pursue further
treatment.
In an April 2002 letter, the veteran's mother indicated that
when the veteran left for Vietnam his eyes were normal but
when he came back from Vietnam his eyes were bloodshot all
the time. She remembered that he went to the doctor for his
eye condition upon arriving home but did not remember what
diagnosis was made.
An April 2002 comprehensive private eye examination report
indicated that the veteran complained that ever since his
service in Vietnam he had noticed episodes of his eyes
clamping shut to the point that if he were driving he would
have to pull to the side of the road as he could not open his
eyelids, even utilizing his fingers. His eyes would also get
red and watery during these episodes. The veteran also
indicated that these episodes had been getting worse in the
past two or three years. The examiner indicated that while
he could detect no blepharospasm at the time of the
examination, the symptoms the veteran had reported were
indicative of essential belpharospasm. He advised the
veteran that essential blepharospasm could be stress-induced
and could be related to the stress levels he encountered in
Vietnam. He also advised the veteran that there were medical
treatments available for essential blepharospasm and that he
should consult the VA for further evaluation.
A March 2003 rating decision denied service connection for
essential blepharospasms, finding that this condition had not
been clinically diagnosed.
At a February 2004 optometry visit it was noted that the
veteran had a history of blepharospasm that was stress
induced. The pertinent diagnostic assessment was
blepharospasm secondary to stress disorder.
On May 2004 ophthalmologic examination done on behalf of VA,
the veteran reported that he had had several episodes where
his eyes had begun to shut and close involuntarily. The
process usually began in a stressful, fatigued or tired
situation where his eyes would begin to burn, blur up and
then subsequently the eyelids would spasm to the point where
the veteran could not open his eyes. If he was driving when
this would happen he would need to pull over and wait for the
episode to subside. The episodes would last 5 to 10 minutes
after which the veteran was usually able to open his eyes
again and proceed with his activities. No residual spasm or
blurriness would remain. The episodes would occur
approximately once every one to two weeks. The pertinent
diagnostic impression was blepharospasm with differential
diagnoses of benign essential blepharospasm, dry eyes or
ocular allergies. The examiner commented that although the
veteran may have had the very early stages of benign
essential blepharospasm, the extremity and frequency of his
episodes did not indicate the need for current treatment.
The examiner believed that it was just as likely that the
veteran's symptoms could be caused by drying out of the
ocular surface. He did not believe that the veteran has any
significant disability from the blepharospasm and he
recommended that artificial tears be used whenever the
veteran noticed the burning sensation in his eyes as the
artificial tears could abort the onset of the spasms. The
examiner also noted that stress could exacerbate or bring on
the benign essential blepharospasm.
III. Law and Regulations
Generally, when a claim is disallowed, it may not be reopened
and allowed, and a claim based on the same factual basis may
not be considered. See 38 U.S.C.A. § 7105. A claim on which
there is a final decision may be reopened if new and material
evidence is submitted, however. 38 U.S.C.A. § 5108.
38 C.F.R. § 3.156(a), which defines "new and material
evidence" was revised, effective August 29, 2001. The
instant claim to reopen was filed after that date (in October
2004), and the new definition applies. "New" evidence
means existing evidence not previously submitted to agency
decision makers. "Material" evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is to be
presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disability was
incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The determination as to whether these requirements are met is
based on an analysis of all the evidence of record and the
evaluation of its credibility and probative value. Baldwin v.
West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
A disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. 38 C.F.R. § 3.310(a). A claimant is also
entitled to service connection on a secondary basis when it
is shown that a service-connected disability aggravates a
nonservice- connected disability. Allen v. Brown, 7 Vet.
App. 439 (1995).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b).
When all of the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a fair preponderance of the evidence is
against the claim, in which case the claim is denied.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
IV. Analysis
Claim to Reopen
As noted above, the March 2003 rating decision denied service
connection for blepharospasms, finding that the evidence did
not show that the veteran currently had the disability. The
veteran did not appeal this decision to the Board in a timely
fashion and it became final. 38 U.S.C.A. § 7105.
Accordingly, in order for the veteran's claim for service
connection for blepharospasms to be reopened, new and
material evidence would have to be received. 38 U.S.C.A.
§ 5108.
Examining the evidence received since the March 2003 rating
decision, the Board finds that both the February 2004
optometry visit report and the May 2004 opthalmological
examination report relate to an unestablished fact necessary
to substantiate the claim as these reports tend to show that
the veteran does have a currently diagnosed blepharospasm
disability. Notably, although the May 2004 report found the
veteran's level of disability "insignificant," it still did
find some minimal level of disability, which is sufficient
for a finding of "current disability" for service
connection purposes. Also, in combination with the February
2007 rating decision granting service connection for PTSD,
these reports raise a reasonable possibility of
substantiating the claim as they also indicate that the
blepharospasm disability is related to stress and aggravated
by stress, and thus by extension, to the veteran's main
stress related problem, PTSD. Accordingly, this newly
received evidence is new and material and the veteran's claim
for service connection for blepharospasms may be reopened.
Merits of Service Connection Claim
As the veteran's claim for service connection for
blepharospasms is now reopened, the Board will consider it on
the merits. The record establishes that the veteran has a
current blepharospasm disability as he was diagnosed as
having blepharospasms in both February 2004 and May 2004 (and
with chronic blepharospasms in August 1999) and there is no
subsequent evidence of record indicating that this condition
has resolved. Additionally, both the February 2004 and May
2004 reports, as well as the prior April 2002 report,
indicated that the veteran's blepharospasm was related to
stress, with the May 2004 report specifically indicating that
stress could cause or aggravate it, and there is no contrary
evidence of record indicating that the blepharospasms are not
stress-related. As the February 2007 rating decision granted
service connection for PTSD and assigned a 30 percent rating
effective October 2001 and a 70 percent rating from May 2004,
it is clear from the record that the veteran has experienced
a significant amount of stress from this service connected
PTSD back at least as far as October 2001. Also, the record
does not show other physical or mental conditions or
environmental factors, which would subject the veteran to the
same level of stress as his PTSD. Thus, it is reasonable to
conclude that the stress from the veteran's PTSD causes
and/or aggravates his blepharospasms. Accordingly, resolving
reasonable doubt in favor of the veteran (See 38 C.F.R. §
3.102), the Board finds that service connection for
blepharospasms as secondary to service connected PTSD is
warranted.
ORDER
New and material evidence has been received; a claim for
service connection for blepharospasms is reopened.
Entitlement to service connection for blepharospasms is
granted.
____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs